Bowles v. May

Citation166 S.E. 550
PartiesBOWLES. v. MAY.
Decision Date17 November 1932
CourtSupreme Court of Virginia
*

Error to Circuit Court, Fairfax County.

Action by Mae F. May against B. Agee Bowles. To review a judgment for plaintiff, defendant brings error.

Reversed, and case dismissed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and GREGORY, JJ.

Wilson M. Farr and Hugh B. Marsh, both of Fairfax, and Frank L. Ball, of Clarendon, for plaintiff in error.

Barbour, Keith, McCandlish & Garnett and Charles Pickett, all of Fairfax, for defendant in error.

HUDGINS, J.

The plaintiff in the trial court obtained a verdict and judgment for physical consequences of fright or mental shock, unaccompanied by contemporaneous physical injury. From that judgment the defendant obtained a writ of error.

The notice of motion was hot skillfully drawn. It contains elements of trespass, assault, slander, and the use of insulting words, combined in a recital of events with no at tempt to segregate the allegations constituting the different causes of action in separate counts. Notwithstanding the liberal construction given to notices of motion under Code, § 6046, the demurrer to the notice should have been sustained and the plaintiff required to state her cause of action with reasonable precision. The defendant was unnecessarily handicapped, in pleading to the notice, in ascertaining the real basis of the plaintiff's cause of action and in making preparation for his defense.

The object of all pleading is the production of an issue, and, when it is one of fact, to confine the introduction of evidence to the relevancy of the issue thus made, so that there will be no confusion in the minds of the jury as to the question to be decided. The result of this failure to produce a clear-cut issue is reflected in the mass of irrelevant matter introduced in the record and the abstract principles of law stated in the plaintiff's instructions, which tended to confuse, rather than to aid, the jury.

The development of these conclusions ordinarily would dispose of the case, but, inasmuch as the record contains all the evidence even remotely connected with the real issue and discloses that the people in the neighborhood in which the alleged cause of action arose have been much disturbed by the scandalous matter involved, we will dispose of the case on its merits.

The admitted facts are that the defendant, who lived with his wife and two sons in Arlington county, Va, was an active vice president of the Potomac Savings Bank of Washington, D. C.; that R. P. Mills, together with his wife and two children, lived upon, owned, and operated a small dairy farm in Fairfax county; that in 1928 Mills became financially involved, among other debts owed one to the Potomac Savings Bank, which had reduced its claim to judgment; that he sought financial aid through the defendant, who caused a report to be made of the value of the farm, and, after a personal inspection, extended financial aid to him and thereafter became his business adviser, as a result of which Mills seems to have prospered. Mrs. Mills was often in Washington, and on a number of occasions the defendant took her home as he was returning to his own home from his place of business; sometimes he carried her all the way and sometimes she was met by Mr. Mills.

The plaintiff, with her husband, lived on the highway within a quarter of a mile of the Mills farm, where they met the defendant. Subsequently, Mr. May obtained through defendant a loan from the Potomac Savings Bank.

All the parties seem to have been, if not friends, on very good terms, until January 5, 1930, when plaintiff, for some cause, stoppedbuying milk from Mr. Mills. In 1929, a rumor was current that the relation between Mrs. Mills and the defendant was not what it ought to be. This rumor reached the defendant, who at first paid no attention to it. In February, 1930, Mr. Mills informed the defendant that the Mays--i. e., the plaintiff and her husband--had originated the gossip, which was to the. effect that defendant had given Mrs. Mills silk underwear, a fur coat, and a car for Christmas, and that he had parked his automobile at or near the driveway to plaintiff's home, and, together with Mrs. Mills, had sat therein until a late hour of the night. Defendant stated to Mr. Mills that, if his visits to his home had embarrassed him, his wife, or caused talk in the neighborhood, he would discontinue them, to which Mills replied that, if he had thought defendant was going to take that view of the matter, he would never have mentioned the rumor to him, that he had always been, and was, a welcome visitor in his home. Defendant then determined to take the matter up with plaintiff and her husband.

Within a few days after this interview, to wit, February 21, 1930, defendant went in his automobile to the Mills home, and, after talking with them a few minutes, walked from their place over to plaintiff's home for the purpose, in good faith, as he stated, of investigating the reports which were being circulated. The defendant entered the living room of the plaintiff, and when the three --i. e., plaintiff, her husband and defendant --were seated, told them that he wanted to talk to both husband and wife, and stated the purpose of his visit. What occurred during the interview is in dispute.

Plaintiff and her husband both testified that defendant's exact words were: "Mrs. May, you have made criminal, libelous statements against me and Mrs. Mills. I am financially able to fight this to the limit. It means a jail sentence, and that is where I intend to see you go. I am a lawyer by profession." They further testified that in using this language, "his manner was threatening, menacing, boisterous and beastly"; that Mr. May worned defendant of his wife's condition and told him he would have to return to their home and retract the charges he had made against his wife. For twenty minutes or more he continued to discuss the matter with defendant and insisted that neither he nor his wife had repeated any such reports and that both of them would sign affidavits to that effect if he would prepare and present them. Defendant left with that understanding.

On the night of February 25, defendant returned, produced the paper he had prepared in the form of an affidavit, and the subject was discussed for some time. Plaintiff and her husband were not satisfied with the affidavit and did not sign it; they brought up other rumors concerning defendant and Mrs. Mills. As defendant was leaving, he offered to shake hands with plaintiff, who refused. Her account of the matter was that "he turned on me in a very ungentlemanly, angry manner and said that I would never have the opportunity to shake hands (with him) again."

It appears that in the spring or summer of 1927 plaintiff had suffered a stroke of paralysis which affected her left leg and arm and to some extent her power of speech; that she improved slowly, and by December, 1927, was dismissed by her physician, with instructions to avoid crowds or excitement; and that she moved to Fairfax county for the purpose of remaining quiet, and continued to improve. Shortly after taking up her residence in Fairfax, her home was destroyed by fire; this occurred while her husband was performing his duties as clerk in Washington and while she and a neighbor's two children under 6 years of age were alone on the premises. Her nerves were somewhat affected by this occurrence, causing her to remain in bed a day or two, but, when her husband was rebuilding the house, she was able to help him put the roof on, and subsequently, during the day while her husband was in Washington, looked after fifteen hundred or more young chickens. On the night of February 21, after defendant left, she was nervous, restless, and unable to sleep, and on the evening of February 26 she suffered a second stroke of paralysis in which the same parts of her body were affected, her power of speech being more seriously impaired than before. At the time of the trial, more than a year later, she was able to walk with a crutch, and her power of speech had greatly improved.

It is claimed that the wrongful acts of the defendant caused fright or mental shock to olaintiff, resulting in the second stroke of paralysis.

When the jury returned its verdict of $2,-500 for plaintiff, defendant moved to set it aside on various grounds, among others (1) because it was not established that defendant had violated any duty he owed to plaintiff; and (2) because, even if he had, the physical injury was not the direct and probable result of the alleged wrongful act.

To determine whether defendant violated any duty he owed to plaintiff requires a careful examination and analysis of the evidence.

Defendant was known by plaintiff and her husband in both a business and a social way; he had been in their home on several occasions for the purpose of using the telephone, and he testified that he had a standing invitation to visit them socially; but, whether he had or not, when he was informed that these parties were circulating false rumors which reflected upon his good name, he owed to himself and to his family the duty to investigate the reports. He denied makingany gift to Mrs. Mills except a clock which he gave to the family. In this he was corroborated by both Mr. and Mrs. Mills, and this evidence stands uncontradicted in the record.

When he sought an interview with plaintiff, he approached the front door, carrying a flash-light, and was there met by her husband. There was a good deal of quibbling as to whether he was invited in or walked in without an invitation, and whether he removed his galoshes before entering; but, according to both plaintiff and her husband, all parties were seated before he made known the purpose of his visit. The entry was lawful, and his subsequent conduct did not make him a trespasser.

The only evidence which tends in the slightest degree to sustain the suggestion that defendant was guilty...

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